Malaysian Government Asks Interpol To Arrest An American Comedian Over Her Airline Crash Joke

from the insulting-the-airline-is-a-bootable-offense,-Mr.-Simpson dept

The government of Malaysia isn’t too concerned about free speech. It may be a tourist destination, but it’s still subservient to a ruling class that likely can thank inbreeding for its current place at the top of the heap.

Because it’s still ruled by people who’ve never been elected to their positions, those with the proper bloodlines have instituted laws to ensure they or the nation they preside over won’t be criticized too heavily by citizens.

The government obviously believes shutting people up shouldn’t just apply to citizens, though. The operative term is “lese magiste.” Insulting rulers is considered a criminal offense, if not actually a form of treason. And this law applies even if the insult arrives from oblique angles from anywhere else in the world.

It’s a fucked up bundle of laws. And that has allowed the Malaysian government to pursue considerably dubious censorship efforts, like going after Spotify because a user-generated playlist enjoyed by Malaysian citizens supposedly “insulted the queen.”

This brings us to the current insanity being perpetrated by the Malaysian government — one that views criticism of anything Malaysian-related as potential treason. The Bermuda Triangle of our time was the crash of Malaysian Airlines flight 370. The plane simply disappeared, despite passengers and employees presumably carrying smartphones capable of generating location data (if nothing else), if not actually putting them in touch with loved ones as it became evident the plane was doomed.

This mysterious crash (and even more mysterious disappearance) dates back nearly a decade. The plane crash occurred March 8, 2014. Somehow, the Malaysian government feels it’s too soon to start joking about a Malaysian airlines plane crash. Inexplicably, the government has issued an Interpol notice asking all Interpol members (which includes the United States) to pick up an American comedian for telling jokes she’s been telling for years about the MH370 crash. The BBC was the first to report on this incredibly disturbing development.

Jocelyn Chia, a US national who grew up in Singapore, is being investigated under Malaysian laws on incitement and offensive online content, police say.

Her joke, posted online last week, prompted an official protest from Malaysia and an apology from Singapore.

[…]

On Tuesday Malaysian national police chief Acryl Sani Abdullah Sani said an application would be filed with Interpol on Wednesday to get Ms Chia’s “full identity” and “latest location“.

While Interpol may be integral to capturing criminals engaging in international crimes, its involvement in this is unnecessary for several reasons.

First off, Ms. Chia’s “full identity” isn’t a secret. She’s an American comedian who relies on being known by her name to book appearances and ensure fans of her work know where they can watch her perform. She has made no effort to obscure her identity because there’s no reason she would need to.

As for her “latest location,” fuck Malaysia. It’s none of its business.

Finally, if the government of Malaysia is so offended by this joke, maybe it should have taken action years ago when Chia first started telling it. It’s been part of her set for years. The bit — written by the Singapore resident — says Singapore is a first world country while Malaysia is still a “developing” country because (as the joke goes) Malaysia’s planes can’t actually fly.

Tasteless. Sure, maybe a little. Too soon? Eye of the beholder. A criminal offense under Malaysian law? Yeah, probably, but only because Malaysian laws seek to protect someone who was born into their position.

The condemnation of Chia’s “statements” is exceedingly ridiculous. Government officials claim this years-old joke is “horrendous.” But just because these officials aren’t laughing doesn’t mean it should be an offense for which Chia can be extradited and tried by a Malaysian criminal court.

Malaysian taxpayers should be outraged. And they probably are. But what can they do? There’s a queen sitting on top of the part of the government that’s actually elected. The bootlicker hierarchy is a mess. Public servants serve the queen, rather than the public. The public is expected to respect both levels of government, even when the elected level engages in performative outrage on behalf of someone who likely never would have heard about this supposed insult if they weren’t being catered to by a bunch of vacuous subservients.

It caused an uproar on social media, followed by condemnations by top Malaysian officials including the foreign minister.

“I am appalled by her horrendous statements,” Singapore’s foreign minister Vivian Balakrishnan tweeted last week.

“We treasure our ties with family and friends in Malaysia, and are sorry for the offence and hurt caused to all Malaysians.”

Whatever. Get over it. It’s a joke. It’s not a great joke and it errs on the side of tastelessness, but it is obviously a joke.

Hopefully, Interpol participants will send this request straight to the shredder. Interpol is not the comedy police. And it’s not an extraterritorial collection of stooges obliged to respond every time some queen or their yes men feel ways about stuff. Chia should have nothing to fear from this stupidity. But she stands to gain everything from the Malaysian government’s insistence in making her a household name.

Filed Under: free speech, interpol, jocelyn chia, joke, malaysia, mh370, plane crash

Texas Legislature Convinced First Amendment Simply Does Not Exist

from the it's-time-for-them-to-learn dept

Over the past two years, there has been a concerted push by state legislatures to regulate the Internet, the likes of which has not been seen since the late 90s/early aughts. Content moderation, financial relationships between journalists and platforms, social media design and transparency, “national security,” kids being exposed to “bad” Internet speech—you name it, a state legislature has introduced an unconstitutional bill about it. So it’s no surprise that the anti-porn crowd seized the moment to once again exhibit a creepy and unhealthy interest in what other people do with their pants off.

The Texas legislature, also unsurprisingly, was all too happy to help out. Last week, Texas Governor Greg Abbott signed into law HB 1181, which regulates websites that publish or distribute “material harmful to minors,” i.e., porn.

Start from the premise that pornography is protected by the First Amendment, but that it may be restricted for minors where it could not be for adults under variable obscenity jurisprudence.

The law’s requirements applies to any “commercial entity,” explicitly including social media platforms, that “intentionally publishes or distributes material on an Internet website… more than one-third of which” is porn. That’s a problematic criterion in the first place. I don’t know that there’s an easy (or even feasible) way for a social media platform to know precisely how much porn is on it (perhaps there is, though). And what about a non-social media website—what is the denominator? If a website has articles (which is definitely the reason you’re on it, I know) plus naughty pictures, is the percentage calculated by comparing the number of porn-y things to the number of articles? Words? Pages? Who knows—the law sure doesn’t say.

But that’s the least of the law’s problems. HB 1181 requires qualifying entities (however determined) to do two things, both of which clear First Amendment hurdles about as well as a rhinoceros competing in a steeplechase.

Age-Verifying Users

This has been a recurring theme in state and federal legislation recently. HB 1181 requires covered entities to “use reasonable age verification methods” to ensure that users are 18 or older before allowing access.

We’ve been here before, and explaining this over and over again is getting exhausting. But I’ll do it again, louder, for the people in the back.

Age Verification Laws: A Brief History

In the beginning (of the web) there was porn. And the Government saw that it was “icky” and said “let there be laws.”

In 1996, Congress passed the Communications Decency Act, prohibiting the knowing transmission or display of “obscene or indecent” messages to minors using the Internet. A unanimous Supreme Court struck down the law (with the exception of Section 230) in Reno v. ACLU, holding that it chilled protected speech, in part because there was no way for users in chat rooms, newsgroups, etc. to know the age of other users—and even if there was, a heckler’s veto could be easily imposed by

any opponent of indecent speech who might simply log on and inform the would-be discoursers that his 17-year-old child…would be present.

The Court rejected the government’s argument that affirmative defenses for use of age-verification methods (in particular credit card verification) saved the law, noting that not every adult has a credit card, and that existing age verification methods did not “actually preclude minors from posing as adults.”

So Congress tried again, passing the Child Online Protection Act (COPA) in 1998, ostensibly narrowed to only commercial enterprises, and again containing affirmative defenses for using age-verification. Again, the courts were not buying it: in a pair of decisions, the Third Circuit struck down COPA.

With respect to the viability of age verification, the court found that the affirmative defense was “effectively unavailable” because, again, entering a credit or debit card number does precisely nothing to verify a user’s age.

But more importantly, the court ruled that the entire idea of conditioning access to material on a government-imposed age verification scheme violates the First Amendment. Noting Supreme Court precedent “disapprov[ing] of content-based restrictions that require recipients to identify themselves affirmatively before being granted access to disfavored speech,” the Third Circuit ruled in 2003 that age-verification would chill protected speech:

We agree with the District Court’s determination that COPA will likely deter many adults from accessing restricted content, because many Web users are simply unwilling to provide identification information in order to gain access to content, especially where the information they wish to access is sensitive or controversial. People may fear to transmit their personal information, and may also fear that their personal, identifying information will be collected and stored in the records of various Web sites or providers of adult identification numbers.

In its second decision, coming in 2008, the court again agreed that “many users who are not willing to access information non-anonymously will be deterred from accessing the desired information.” And thus, after the Supreme Court denied cert, COPA—and the notion that government could force websites to age-verify users—died.

Until now.

Age Verification Today

Has anything changed that would render these laws newly-constitutional? One might argue that age-verification technologies have improved, and are no longer as crude as “enter a credit card number.” I suppose that’s true in a sense, but not a meaningful one. HB 1181 requires age verification by either (a) a user providing “digital identification” (left undefined), or (b) use of a commercial age-verification system that uses either government-issued ID or “a commercially reasonable method that relies on public or private transactional data.”

It stands to reason that if a minor can swipe a parent’s credit card for long enough to enter it into a verification service, they can do the same with a form of Government ID. Or even easier, they could just borrow one from an older friend or relative. And like entering a credit card number, simply entering (or photographing) a government ID does not ensure that the person doing so is the owner of that ID. And what of verification solutions that rely on selfies or live video? There is very good reason to doubt that they are any more reliable: the first page of Google search results for “trick selfie verification” turns up numerous methods for bypassing verification using free, easy-to-use software. Even the French, who very much want online age-verification to be a thing, have acknowledged that all current methods “are circumventable and intrusive.”

But even assuming that there was a reliable way to do age verification, the First Amendment problem remains: HB 1181 requires adult users to sacrifice their anonymity in order to access content disfavored by the government, and First Amendment jurisprudence on that point has not changed since 2008. Texas might argue that because HB 1181 prohibits websites or verification services from retaining any identifying information, the chilling harm is mitigated. But there are two problems with that argument:

First, on a practical level, I don’t know how that prohibition can work. A Texas attorney general suing a platform for violating the law will have to point to specific instances where an entity failed to age-verify. But how, exactly, is an entity to prove that it indeed did perform adequate verification, if it must delete all the proof? Surely just keeping a record that verification occurred wouldn’t be acceptable to Texas—otherwise companies could simply create the record for each user and Texas would have no way of disproving it.

Second, whether or not entities retain identification information is entirely irrelevant. The chilling effect isn’t dependent on whether or not a user’s browsing history or personal information is ultimately revealed. It occurs because the user is asked for their identifying information in the first place. Few if any users are even likely to even know about the data retention prohibition. All they will know is that they are being asked to hand over ID to access content that they might not want associated with their identity—and many will likely refrain as a result. The de-anonymization to anyone, for any amount of time, is what causes the First Amendment harm.

Technology has changed, but humans and the First Amendment…not so much. Age verification remains a threat to user privacy and security, and to protected First Amendment activity.

Anti-Porn Disclaimers

HB 1181 also requires covered entities to display three conspicuous notices on their home page (and any advertising for their website):

TEXAS HEALTH AND HUMAN SERVICES WARNING: Pornography is potentially biologically addictive, is proven to harm human brain development, desensitizes brain reward circuits, increases conditioned responses, and weakens brain function.

TEXAS HEALTH AND HUMAN SERVICES WARNING: Exposure to this content is associated with low self-esteem and body image, eating disorders, impaired brain development, and other emotional and mental illnesses.

TEXAS HEALTH AND HUMAN SERVICES WARNING: Pornography increases the demand for prostitution, child exploitation, and child pornography.

It’s obvious what Texas is trying to do here. And it’s also obvious what Texas will argue: “The government often forces companies to place warnings on dangerous products, just look at cigarette packages. That’s what we’re doing here too!”

You can likely anticipate what I have to think about that, but it’s worth interrogating in some depth to see exactly why it’s so very wrong.

What Kind of Speech Regulation is This?

Obviously, HB 1181 compels speech. In First Amendment jurisprudence, compelled speech is generally anathema, and subject to strict scrutiny. But the government has more leeway to regulate (or compel) “commercial speech,” that is, non-misleading speech that “does no more than propose a commercial transaction” or “relate[s] solely to the economic interests of the speaker and its audience.”

At the outset, I am skeptical that this is a commercial speech regulation. True, it applies only to “commercial entities” (defined effectively as any legally recognized business entity), but speech by a business entity is not ipso facto commercial speech, nor does a profit motive automatically render speech “commercial.” Imagine, for example, that 30% of Twitter content was found to be pornographic. Twitter makes money through its Twitter Blue subscriptions and advertisements. But does that make Twitter as a whole, and every piece of content on it, “commercial speech?” Certainly not. See Riley v. National Federation of Blind, 487 U.S. 781, 796 (1988) (when commercial speech is “inextricably intertwined with otherwise fully protected speech,” the relaxed standards for commercial speech are inapplicable).

And even as applied to commercial pornography websites in the traditional sense¹ (presuming that in this application, courts would view the notice requirement as a commercial speech regulation), HB 1181 might be in trouble. In International Outdoor, Inc. v. City of Troy, the Sixth Circuit persuasively reasoned that even commercial regulations are subject to strict scrutiny when they are content based (as HB 1181 plainly is), particularly where they also regulate noncommercial speech (as HB 1181 plainly does). If strict scrutiny is the applicable constitutional standard, the law is certainly dead.

But let’s assume for the sake of argument that we are in Commercial Speech Land, because either way the notice requirement is unconstitutional.

Constitutional Standards for Compelled Commercial Speech

For a commercial speech regulation to be constitutional, it must directly advance a substantial government interest and be narrowly tailored so as not to be more extensive than necessary to further that interest—known as the Central Hudson test.

But there’s another wrinkle: certain compelled commercial disclosures are subjected to the lower constitutional standard articulated in Zauderer v. Office of Disciplinary Counsel. Under Zauderer, compelled disclosures of “purely factual and uncontroversial information” must only “reasonably relate” to a substantial government interest and not be unjustified or unduly burdensome. What type of government interest suffices has been a matter of controversy: Zauderer (and Supreme Court cases applying it) have, on their face, related to remedying or preventing consumer deception in advertising.² But multiple appellate courts have held that the government interest need not be related to consumer deception.

Would the HB 1181 Receive the More Permissive Zauderer Analysis?

Setting aside the question of government interest for just a moment, the HB 1181 notices are clearly not governed by the lower Zauderer standard because in no way are they “purely factual and uncontroversial.”

In 2015, the U.S. Court of Appeals for the D.C. Circuit struck down a regulation requiring (to simplify) labeling of “conflict minerals.” While the origin of minerals might be a factual matter, the court found that the “not conflict free” label was not “non-ideological” (i.e., uncontroversial): it conveyed “moral responsibility for the Congo war” and required sellers to “publicly condemn [themselves]” and tell consumers that their products are “ethically tainted.”

Dissenting, Judge Srinivasan would have read “uncontroversial” as relating to “factual”—that is, disclosures are uncontroversial if they disclose facts that are indisputably accurate. Even under Judge Srinivasan’s more permissive construction, the HB 1181 notices are not factual and uncontroversial. They are, quite simply, standard hysterical anti-porn lobby talking points—some rejected by science and in every other case hotly disputed by professionals and the scientific literature.

And then the Supreme Court decided National Institute of Family & Life Advocates v. Becerra (NIFLA), striking down a California regulation requiring family planning clinics to disseminate a government notice regarding state-provided family-planning services, including abortion—”anything but an ‘uncontroversial’ topic,” the Court noted. In a later case, the Ninth Circuit explained that the notices in NIFLA were not “uncontroversial” under Zauderer because they “took sides in a heated political controversy, forcing [clinics opposed to abortion] to convey a message fundamentally at odds with its mission.”

However you look at it, these notices are not “factual and uncontroversial.” They make claims that are by no means established facts (one might even call them opinions), put the government thumb on the scale in support of them, and force speakers to promote controversial hot-button views that condemn their own constitutionally protected speech. They are simply not the type of disclosures that Zauderer contemplates.

Do the Notices Satisfy the Central Hudson Test?

I’ll admit to hiding the ball a little in order to talk about Zauderer. Regardless of whether Zauderer or Central Hudson controls, the first step of the analysis would remain the same: does the government have a substantial interest?

It seems clear to me that the answer is “no,” so the notice requirement would fail scrutiny either way.

Texas may argue that its interest is “protecting the physical and psychological well-being of minors,” as the federal government asserted when defending the CDA and COPA. While the Supreme Court has held that interest to be compelling, I’m not sure Texas can plausibly claim it here. If the harm to minors comes from viewing porn, but the age verification requirement prevents them from seeing the porn while they are minors, is there a substantial government interest in telling them that the porn they can’t even access is “bad?” To my mind, it doesn’t adequately square. (Admittedly, this may be more of a question of whether the notices “directly advance” the government interest.)

The plain language of the notices evince a much broader theme. To the extent that Texas is trying to protect minors, it seems that it is also trying to protect them from the “harms” of porn even once they are no longer minors—that is, to keep them from getting “hooked on porn” ever. In that sense, the notice requirement is aimed as much at adults as it is at minors. The message is clear: porn is harmful and bad—no matter what age you are—and you should abstain from consuming it.

Here’s where Texas will invariably analogize HB 1181 to mandated warning labels on cigarettes. “It’s constitutionally permissible to force companies to label dangerous products, and that’s all we’re doing,” Texas will say. But the government interest there is to reduce smoking rates—thereby protecting consumer and public health from a physical product that definitively causes serious and deadly physical disease.

HB 1181 is different in every respect, by a country mile. Distilled to its core, the government interest that Texas must be asserting is: generally reducing the consumption of protected expression disfavored by a government that considers it psychologically harmful to readers/viewers. HB 1181 seeks to protect citizens not from a product with physical effects,³ but rather, from ideas and how they make us think and feel.⁴ Can that be any government interest at all, let alone a substantial one?

It’s a startling proposition that would give government the power to shape the contours of public discourse in ways entirely at odds with First Amendment principles. Could the government invoke an interest in protecting the public from the psychological harms of hateful speech and demand that any commercial entity distributing it affix a warning label dissuading readers from consuming it? What about the damaging effects (including on health) of political polarizations? Could the government rely on those harms and force “partisan media” to issue warnings about the dangers of their content? Must gun-related periodicals warn readers that “gun culture” leads to mass shootings at the government’s demand? Or can fashion magazines be forced to tell readers that looking at skinny people causes low self-esteem eating disorders? You get the picture.

Consider New York’s “Hateful Conduct Law,” recently struck down by a federal district court in a challenge brought by Eugene Volokh and and two social media platforms. That law requires any commercial operator of a service that allows users to share content to establish a mechanism for users to complain about “hateful conduct” and post a policy detailing how such reports will be addressed. (Notably, the court rejected New York’s assertion that the law only compelled commercial speech.) While the court ultimately accepted “reducing instances of hate-fueled mass shootings” as a compelling government interest (and then held the law not narrowly tailored), it explained in a footnote that “a state’s desire to reduce [constitutionally protected speech] from the public discourse cannot be a compelling government interest.”

And that is clearly the aim of the HB 1181 notices: to reduce porn consumption. To my mind, this is no different than the Supreme Court’s rejection in Matal v. Tam of a government interest in “preventing speech…that offend[s].” Offense, after all, is a psychological impact that can affect mental well-being. But the First Amendment demands that government stay out of the business of deciding whether protected speech is “good” or “bad” for us.

The wholly unestablished nature of the claims made in HB 1181’s notices also cut against the sufficiency of Texas’s interest. In Brown v. Entertainment Merchants Association, California could not draw a direct link between violent video games and “harm to minors,” so it instead relied on “predictive judgments” based on “competing psychological studies” to establish a compelling government interest. But the Supreme Court demanded more than “ambiguous proof,” noting that the case California relied on for a lower burden “applied to intermediate scrutiny to a content-neutral regulation.” (emphasis in original)

While (presuming again that this is in fact a commercial speech regulation) we may be Intermediate Scrutiny Land, we are also in Unquestionably Content-Based Land—and I think that counts for something. In all respects, HB 1181’s notice requirement is a content-based regulation justified by the (state’s theorized) reaction of listeners. See Boos v. Barry, 485 U.S. 312, 321 (1988) (“[I]f the ordinance…was justified by the city’s desire to prevent the psychological damage it felt was associated with viewing adult movies, then analysis of the measure as a content-based statute would have been appropriate.”). While I am doubtful that Texas can ultimately assert any substantial interest here, at the very least any asserted interest must be solidly supported rather than moralistic cherry picking.

In sum, I do not see how any state interest in reducing the consumption (and thus ultimately proliferation) of entirely protected speech can itself be a legitimate one. By extension, I think that invalidates any government interest in protecting recipients of that speech from the psychological effects of that speech—the entire point of expression is to have some kind of impact. Speech can of course have harmful effects at times, and the government is free to use its own speech, on its own time, to encourage citizens to make healthy decisions. But it can’t force speakers to warn recipients that their speech ought not be listened to.

---

So why do state legislatures keep introducing and passing laws that are undercut by such clear lines of precedent? The “innocent” answer is that they simply do not care: once they’ve completed the part where they “do something,” they can get the media spots and do the chest-pounding and fundraising—whether the law is ultimately struck down is immaterial. The more sinister answer is that, believing that they have a sympathetic Supreme Court, they are actively manufacturing cases in the hopes that they can remake the First Amendment to their liking. Here’s hoping they fail.

---

1 In contrast, I think that a porn site that provides content (especially if user-uploaded) for free and relies on revenue from advertising is more akin to Twitter than it is to a pay-for-access site for commercial speech purposes.

2 For a good treatment of the Supreme Court’s Zauderer jurisprudence and analysis of its applicability to content moderation transparency laws, see Eric Goldman, Zauderer and Compelled Editorial Transparency: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4246090

3 Notably, some courts have expressed skepticism (without deciding) that a government could even assert “a substantial interest in discouraging consumers from purchasing a lawful product, even one that has been conclusively linked to adverse health consequences [i.e., cigarettes].

4 Unlike cigarettes, the ideas and expression contained within books, films, music, etc (as opposed to the physical medium) are not considered “products” for products liability purposes, and courts have rejected invitations to hold otherwise on First Amendment grounds. See, e.g., Winter v. G.P. Putnam’s Sons, 938 F.2d 1033 (9th Cir. 1991); Gorran v. Atkins Nutritionals, Inc., 464 F. Supp. 2d 315 (S.D.N.Y. 2006).

Originally posted to Ari Cohn’s Substack.

Filed Under: 1st amendment, adult content, age verification, hb 1181, porn license, texas

DOJ Asks Judge To Block Backpage From Talking About Legal Ads, First Amendment, Section 230

from the no-fair!-the-defendant-brought-a-gun-to-a-gunfight! dept

The DOJ must not have much confidence in its case against Backpage executives Michael Lacey and James Larkin. This prosecution is now more than a half-decade old and the government still hasn’t found a way to lock up the many Backpage employees and founders it arrested.

The Backpage site was seized in 2018. This followed years of selective prosecution all over the nation — none of which had resulted in criminal or civil charges sticking against the supposed haven for sex traffickers. Three years after that, the trial finally started, with the DOJ arguing (often without using these exact words) that Backpage not only knew sex trafficking was happening via the site, but aided and abetted this criminal act.

Ignored by the DOJ was the fact that law enforcement viewed Backpage as a valuable tool for tracking down sex traffickers. It also ignored the help Backpage had directly provided to investigators hoping to locate traffickers and their victims.

The DOJ managed to talk itself into a mistrial less than a week after the trial commenced. The judge hit the reset on the prosecution after DOJ prosecutors ignored her warning to stop focusing on the specifics of the alleged sex trafficking.

Before the trial, the judge concluded she would allow evidence showing that people were trafficked using the site, but would not allow prosecutors to linger on the details of the abuse suffered by victims.

“It seemed the government abused that leeway,” Brnovich said. The judge said one government witness testified about being raped more than once, which raises a “whole new emotional response from people.”

The DOJ can’t seem to keep itself from talking about stuff a judge told it to stop talking about. So, it’s pretty rich the DOJ thinks the judge should prevent Backpage and its legal team from talking about all sorts of things that seem very relevant to their defense. Elizabeth Nolan Brown has the details (and a ton of court documents) at Reason.

In a series of motions filed yesterday, the government seeks to prevent the Backpage defendants’ legal team from making basically any reasonable attempt to defend against the charges against them.

Most egregiously, prosecutors want to bar them from mentioning the First Amendment. But the First Amendment is at the center of this case, which revolves around user-generated ads posted to a digital classified-advertising platform. The very crux of the matter is online content and speech.

The DOJ is unwilling to participate in a fair fight. It has already shown it will ignore the court’s orders when it presents its side. And now it wants to prevent Backpage from discussing anything that might weaken the government’s case.

The First Amendment tops the list of subjects the DOJ wants to forbid from making a court appearance. But that’s only one of the DOJ’s motions. There’s a whole lot more the DOJ feels Backpage should just shut up about.

A flurry of filed motions suggest Backpage should do nothing more than sit quietly and allow the DOJ to talk its founders into prison. One motion says the defendants shouldn’t be allowed to make any statements about “the legality or illegality of any advertisement.” Another says Backpage should be forbidden from referencing Section 230 of the CDA whatsoever. The argument there is that this immunity does not apply to federal criminal prosecutions. But that conveniently ignores the value it has for Backpage, which could use it to illustrate that it’s being prosecuted for content contributed by third parties, despite the fact that it could not be sued over this very same content.

Yet another motion asks that Lacey, Larkin, and other Backpage employees be blocked from mentioning their actions were guided by their legal team, which had assured them their business model did not violate the law. This is the government asking the court to tie Backpage’s hands, allowing it to make unchallenged allegations about criminal intent.

And, ironically, the government wants the Backpage legal team blocked from mentioning the DOJ’s spectacular one-week flameout during its first prosecutorial attempt. The government expects the defendants to abide by a laundry list of court-imposed restrictions when it previously demonstrated it couldn’t be bothered to comply with a single request by the presiding judge.

The DOJ has been criticized for its trial by ambush tactics before. This isn’t an ambush, though. This is the government tacitly agreeing to a fair fight and then asking the impartial observer to strip its opponents of all of its weapons before the fight begins. This is complete bullshit. Hopefully, the judge will toss these just as quickly as the DOJ filed them. If the DOJ wants to use its considerable power to punish people for things other people did, the least it can do is allow those it’s trying to punish to fully defend themselves.

Filed Under: 1st amendment, doj, free speech, james larkin, michael lacey, section 230
Companies: backpage

Tennessee Appeals Court Says Vanity License Plates Are Likely Protected Speech

from the SUCKIT dept

There have been lots of legal battles fought over proprietary blends of numbers and letters. States collecting a premium for vanity plates claim this is government speech, since it’s a state-issued plate. Or, if it’s not quite government speech, it’s the government’s tacit approval of this speech, even if the vanity plate really only contains statements made by plate owners.

There’s no unified take on license plates, even if the Supreme Court has (sort of) weighed in on the matter. That decision dealt with “specialty plates,” which involve driver-generated designs, rather than driver-generated phrases placed on government-designed plates. That difference matters. But the ruling in Walker isn’t conclusive enough to prevent nearly every court dealing with this issue to come to different conclusions.

This decision [PDF], brought to us by the lawyer who won this part of the battle, First Amendment lawyer Daniel Horwitz (almost a Techdirt regular at this point), sides with the driver. Tennessee resident Leah Gilliam applied for a vanity plate more than a decade ago. She was granted a vanity plate reading “69PWNDU” on January 31, 2011. Nothing happened for more than 10 years.

Then this happened:

On May 7, 2021, the Department’s then-Chief of Staff, Justin Moorhead, received a text message on his personal cell phone containing a picture of Plaintiff’s license plate. The message stated: “If I could take a moment of personal privilege and acknowledge the tireless work that Justin does for his department[.] I commend you sir[.]” Mr. Moorhead responded: “Hahah thank you for your citizen[’]s report[.]” Thereafter, Mr. Moorhead brought Plaintiff’s license plate to the attention of the Inventory Unit. The Department reviewed the plate, determined it was erroneously issued to Plaintiff, and revoked it.

That decision to follow up on a text message by revoking a plate that had provided the state with a decade’s-worth of vanity plate fees resulted in this lawsuit. The trial court handed down a rejection of the Gilliam’s constitutional claims.

The panel held that the alphanumeric configurations on vanity license plates are government speech because they convey government agreement with the message displayed. Further, license plates are “government mandated, government controlled, and government issued IDs that have traditionally been used as a medium for government speech.” Inasmuch as the message on the plate amounts to government speech, the panel concluded that the “Free Speech Clause . . . does not regulate government speech[,]” and thus “[t]he constitutional rights the Plaintiff claims in her complaint to have been violated are not triggered or implicated[.]”

The state Appeals Court, however, is not so sure. There’s a lot on the record that says the state definitely knows the messages on vanity plates are not government speech. And it knows this because it said as much during its testimony. Further, it’s painfully clear that any other driver reading a vanity plate knows it’s not speech originating from the government.

[T]he State posits that the message is simply one of identification. That is, regardless of the alphanumeric configuration, the “government message” is that the vehicle is lawfully registered with the State. On the other hand, Plaintiff claims that there is no evidence the State has ever used vanity license plates to communicate with the public. To this, the State avers that our analysis should focus on “the medium of expression, not the history of a ‘program’ related to the medium.”

The State’s argument does not hold water. The State wants to focus on the medium, but what is at issue here, specifically, is the alphanumeric configuration as opposed to the background of a specialized plate, the sticker communicating the month registration expires, or the state the plate belongs to. Vanity plates (that is, the use of personalized alphanumeric configurations chosen by the public) did not come into existence until 1998, and since then they communicate what the individual driver, not the government, chooses.

The court hammers this point home after addressing more of the state’s futile, contradictory arguments:

[W]e are unpersuaded by the State’s position that it historically has communicated an “ID” message through the alphanumeric configurations on license plates. If this were true, the message on the vanity plates would be inapposite, and the State would have no incentive to regulate said messages. Stated differently, to the extent the unique alphanumeric configuration serves only to identify a vehicle as lawfully registered, then it is unclear why the State has an interest in the phonetic message.

Don’t be obtuse, says the court:

We are unpersuaded that citizens, upon viewing messages such as BIGRACK, TOPLS69, and WYTRASH, affixed to personal vehicles believe that the State is conveying a message to the public.

So, if it’s not the government’s speech, it’s citizens’ speech. And there are limits to how the government can regulate this, even if the speech is borne by an object issued by the state.

Even if the government can regulate this speech, it can’t do it the way the state is doing it. To avoid constitutional issues, the regulation should, at the very least, be consistent. And it’s anything but that when Tennessee engages in policing vanity plates.

Although the statutory framework allows the Department to approve or deny vanity license plate messages, the record establishes that in reality, the Department’s oversight has been inconsistent. Plaintiff displayed the vanity plate at issue for a decade before the Department revoked it. Had an acquaintance of Mr. Moorhead not photographed the plate and texted the photo to Mr. Moorhead, it is unknown whether the plate would have been revoked at all. Further, the Department has no written policies about how to screen vanity plate applications for “good taste and decency.” Rather, the record shows that the approval process depends largely upon the judgment of the particular Inventory Unit team member reviewing the application that particular day.

The case will head back to the lower court with specific instructions to actually engage with the First Amendment issues raised and the appeals court’s discussion of these issues.

[P]er this Court’s decision, the panel will have to re-evaluate Plaintiff’s claims in an entirely different framework, to-wit, the strictures of the First Amendment and forum analysis.

Does this mean the lower court will find the regulation of vanity plates unconstitutional? That’s not guaranteed. But there’s a far better chance it will find in favor of Horwitz and his client, considering the state’s arguments to the contrary have been punctured brutally and repeatedly by the higher court. And if Tennessee is really worried about possibly being viewed as the source of off-color phonetics, it could just end the vanity plate program and try to get by with a little less revenue.

Filed Under: 1st amendment, daniel horwitz, free speech, license plates, tennessee, vanity plates

Federal Judge Rules Tennessee Anti-Drag Law Unconstitutional

from the try-harder,-haters dept

Tiny hateful people are trying to convert their small-mindedness into actual laws all around the nation. On the public’s dime, bigots are advancing bills targeting the free expression of anyone who doesn’t fall into the hetero container these asshats think everyone should fit into. At least twelve state legislatures have introduced bills designed to criminalize drag shows and other forms of expression most often utilized by those who fall outside of the two gender identities these supposed representatives of the people choose to recognize.

The laws are badly written because they cannot help but be. When you write laws targeting only certain people, it’s extremely easy — if not inevitable — to fall on the wrong side of the Constitution. Tennessee became the first state to pass a law criminalizing drag shows, something legislators tried (not so cleverly) to talk around by not actually utilizing that particular phrase, as this Associated Press article (republished by The Guardian) points out:

The Republican-dominated Tennessee legislature advanced the anti-drag law earlier this year, with several members pointing to drag performances in their hometowns as reasons it was necessary to restrict such performances from taking place in public or where children could view them.

Yet the word “drag” does not appear in the statute. Instead lawmakers changed the definition of adult cabaret to mean “adult-oriented performances that are harmful to minors”. Furthermore, “male or female impersonators” were classified as a form of adult cabaret, akin to strippers and topless, go-go and exotic dancers.

The law would have banned adult cabaret performances from public property or anywhere minors might be present. Performers who broke the law risked being charged with a misdemeanor or a felony for a repeat offense.

The law was supposed to have gone into effect on April 1st of this year. It never did because the group suing over the law, LGBTQ theatre company Friends of George’s, managed to secure a temporary injunction earlier this year.

It’s now permanent. Federal judge Thomas Parker has ruled the law unconstitutional in a 70-page opinion [PDF] that should help provide a blueprint for future constitutional challenges that will be triggered if bills in other parts of the nation are passed by governors as terrible as Governor Bill Lee. (Shout out to LGBTQ news source Los Angeles Blade for providing a copy of the ruling the Associated Press somehow couldn’t manage to share with its millions of readers.)

The opening of the decision says it all:

The Tennessee General Assembly enacted a statute criminalizing the performance of “adult cabaret entertainment” in “any location where the adult cabaret entertainment could be viewed by a person who is not an adult.” Plaintiff Friends of George’s, Inc. sued under 42 U.S.C. § 1983 to enjoin enforcement of that statute, alleging that it is an unconstitutional restriction on free speech under the First Amendment, as incorporated to the states by the Fourteenth Amendment of the United States Constitution.

[…]

After considering the briefs and evidence presented at trial, the Court finds that—despite Tennessee’s compelling interest in protecting the psychological and physical wellbeing of children—the Adult Entertainment Act (“AEA”) is an UNCONSTITUTIONAL restriction on the freedom of speech and PERMANENTLY ENJOINS Defendant Steven Mulroy from enforcing the unconstitutional statute.

The court points out the law is designed from the ground up to be abused to punish only certain people for failing to adhere to what these legislators (and the governor, apparently) believe to be within the realm of “normal” sexuality.

Section 39-17-901’s “harmful to minors” standard lowers the floor for criminal behavior, equipping law enforcement officers with even more discretion. The chance that an officer could abuse that wide discretion is troubling given an art form like drag that some would say purposefully challenges the limits of society’s accepted norms. And the AEA covers a wide geographical reach: “in a location where adult cabaret entertainment could be viewed by a person who is not an adult.”

The Court emphasizes that the fear of prosecution from law enforcement officers is not merely speculative but certainly impending. The Parties stipulate that Defendant intends to enforce the AEA. Moreover, the AEA, unlike the statutes in Ginsberg, Miller, and Davis-Kidd, criminally sanctions not the business operators but the performers themselves. The AEA also contains no textual scienter requirement, safe harbors, or even affirmative defenses—like parental consent—present in similar obscenity statutes as discussed more fully below.

The state tried to claim the law only targeted obscenity, which falls outside of constitutional protections. But not all obscenity is created equal, the judge points out. There are different standards and the law passed here is far too vague to possibly limit itself to only truly illegal obscenity.

Legal obscenity is an exceptionally high standard as one of its prongs requires that the speech “not have serious literary, artistic, political, or scientific value.” Moreover, speech that is not obscene—which may even be harmful to minors—is a different category from obscenity. Simply put, no majority of the Supreme Court has held that sexually explicit—but not obscene—speech receives less protection than political, artistic, or scientific speech.

The state also tried to salvage the law by saying it had copied much of the text from a law that had been on the books since 1987. But that can’t save it from a 2023 review. And the old law regulated businesses, ensuring compliance with zoning laws. This one targets performers, individuals with free speech rights, rather than business entities with fewer speech protections. Not only that, the court notes, homosexual sex was still criminalized in 1987, so just saying that something has been on the books for years isn’t really a slam dunk argument the state seems to think it is.

Here’s where the judge obliterates the law and makes it clear what he thinks about what the state says the intent of the law is and what the state’s true intent is.

Regardless of the Tennessee General Assembly’s intentions, the AEA’s text criminalizes performances that are “harmful to minors” by “male or female impersonators,” and the Court must grapple with that text. The Court finds that this phrase discriminates against the viewpoint of gender identity—particularly, those who wish to impersonate a gender that is different from the one with which they are born. An illustration might be helpful.

Assume an individual, who identifies as male, holds a guitar and wears an “Elvis Presley” costume that is revealing without being legally obscene, but indecent enough to be potentially
harmful to minors. If this individual “performs” by telling jokes in Elvis’ voice in “a location
where adult cabaret entertainment could be viewed by a person who is not an adult,” it is unclear whether this person would violate the AEA. One could argue, as Defendant does, that the individual would qualify as a “similar entertainer,” who belongs in the same category as “topless dancers, go-go dancers, exotic dancers, strippers.” But is that necessarily so? The similar entertainers’ common thread—aside from being traditionally associated with “adult-oriented establishments”—is that they are all dancers of a sort. What if the Elvis impersonator does not dance? Does this performance have any redeeming value to a five-year-old? It remains
unclear whether that performer would violate the AEA.

But if a person who identifies as a female wore the same Elvis costume and engaged in the same performance, she would clearly be a male impersonator. The AEA is viewpoint discriminatory in that it will more likely punish the latter, but not the former, for wearing the same costume and conducting the same performance.

Finally, the court finds the legislature passed the unconstitutional law for a constitutionally impermissible purpose — something that can clearly be gleaned from the legislative record, no matter what the government says now in the law’s defense:

This District Court does not find that the Tennessee General Assembly’s predominate concerns were “increase in sexual exploitation.” Rather, the Court finds that their predominate concerns involved the suppression of unpopular views of those who wish to impersonate a gender that is different from the one with which they were born. Defendant’s identification of “increase in sexual exploitation” as the legislature’s predominate concern in passing the AEA draws not from legislators, but from Ms. Starbuck’s testimony. (“It’s no wonder we have skyrocketing mental health crisis amongst our confused and vulnerable youth with more sexual exploitation crimes reported than ever before.”). The only other time “sexual exploitation” was mentioned in the legislative transcript was in Ms. Starbuck’s testimony. (“[Children] are seeing adults clap every time an article of clothing is removed, the adults are thunderously clapping. And so they are making associations that when you take your clothes off, you’re rewarded money . . . But continuing that behavior is sending that message to children and it[’]s normalizing that sexual exploitation.”) On the other hand, the record is replete with references to the expressive conduct of “male or female impersonators,” “drag shows,” “Pride” events, and more. The Court’s determination that the AEA was enacted for an impermissible purpose is broad enough to reject the notion that the AEA is aimed not at the content of expressive speech but rather at its secondary effects.

The judge signs off with this: a word of warning to the state’s taxpayers, who not only paid to have this stupid law written and enacted, but paid to have it defended in court by people who attempted to salvage it by undercutting the anti-drag “for the children” sales pitch offered by legislators when passing the law.

Tennesseans deserve to know that their State’s defense of the AEA primarily involved a request for the Court to alter the AEA by changing the meaning of “minors” to a “reasonable 17-year-old minor.” In other words, while its citizens believed this powerful law would protect all children, the State’s lawyers told the Court this law will only protect 17-year-olds.

Since many of these bills are cut from the same unconstitutional cloth, it’s unlikely those pending in other state legislatures will survive a challenge should they manage to become law. But I guarantee you the shitty people pushing these laws won’t learn anything from this decision. And they’re going to make taxpayers subsidize the defense of their petty hatred.

Filed Under: 1st amendment, anti-drag, gop, hate, tennessee

Once Again, ‘Free Speech Absolutist’ Elon Musk Caves To Authoritarian Censorial Bullies

from the free-speech-is-about-principles,-not-sloganeering dept

We tend to think of McSweeney’s as a satire magazine, but on this one, it’s dead on:

I Will Defend Free Speech to the Death. Or Until an Autocrat Asks Me to Stop.

They say that if you stand for nothing, you’ll fall for anything. So today, I’m drawing a line in the sand and standing up for free speech. Let every enemy of freedom know, let every would-be tyrant be warned, and let every petty dictator take notice: If you want Twitter to censor its users, just send me an email.

From the very beginning of Elon Musk’s foray into being a social media magnate, we pointed out that he had no fucking clue what it meant to support free speech on such a site. Supporting free speech does not mean simply “allowing troll accounts I like that were suspended for violating the rules back online.” But that seems to be Musk’s entire understanding of free speech.

For example, we’ve also noted, repeatedly, that this tweet a year ago from Musk shows someone who has not actually thought about what it means to stand up for actual free speech:

Because, that means that you’re willing to bow down to any censorial authoritarian country — something that the old Twitter (the one Musk insists did not support free speech) regularly fought back against.

And, so far, Musk has shown a willingness to bow down to authoritarian censors. Every time he’s had a chance to take a stand, he’s folded. Whereas old Twitter refused to take down any tweets from activists and journalists in India, filed a lawsuit against the government, and publicly resisted demands that it pull down criticism of President Modi, Elon caved immediately and blocked some content from activists and journalists worldwide, not just in India.

The latest is yet another example of that. Just as the Turkish election was about to take place, the government demanded that Twitter censor content critical of authoritarian strongman, gollum-lookalike, and world’s most thin skinned leader, Recep Erdogan. And Elon caved.

Now, the old Twitter actually had a history of pushing back against such demands, and even took the Turkish government to court after the government tried to fine the company for refusing to take down content. That wasn’t the only time. We had another story of the old Twitter refusing to block a newspaper’s feed, despite demands from the Turkish government. Back in 2014, Erdogan got so mad at Twitter that he officially blocked it from the entire country, but the citizenry got so angry that the ban was quickly reversed.

In other words, the old Twitter fought regularly over this stuff and went to court.

And Elon just folded.

And when people called him out on this, he (as per usual) got childish and defensive. Here he is insulting Matt Yglesias over this:

Yglesias is actually making a good point here. For all the talk of the Twitter Files, which Musk promised us would show the US government demanding Twitter censor people (when it showed nothing of the sort), here’s an example of a literal government demanding literal censorship, and Musk just rolls right over.

Musk’s response is nonsense. Again, the old Twitter had a long history of fighting exactly these cases as linked above. This is why we’ve pointed out over and over again that the old Twitter was one of the staunchest defenders of actual free speech and that Musk (on day one) fired the people who were the most avid free speech defenders at the company. They might have been able to tell him how to better deal with these situations.

And it’s not like people didn’t try to warn him. This issue was literally “Level Nine” of the speed run lesson plan I gave Elon. Except, even then, I thought that Elon would have the principles to first try to stand up against such authoritarian censors, but apparently I overestimated his willingness to actually fight for free speech.

Wikipedia’s Jimmy Wales highlighted this as well, noting how Wikipedia had received similar orders, but fought them (and won):

Also, note the contrast when some other governments told Elon to remove Russian propagandists. Then he refused, claiming to be a free speech absolutist. Why is this different?

And, of course, Musk’s loudest fans are defending this move, because they have no principles at all. Free speech means having principles and pushing back when governments demand you pull down content that does not violate your policies. It means standing up to governments, not bowing down to them, and letting them push you around.

So, let me ask those defending this move by Musk: are you really suggesting that caving to authoritarian threats to censor content does more than fighting back against those threats? If you say, as Musk does above, that allowing some speech in Turkey is better than being blocked entirely, then how does that same argument not apply to other actions by Twitter to remove some content (such as abusive and harassing content) that might otherwise drive users away?

With this latest move, Musk has screamed loud and clear to any censorial government out there that they just need to threaten to block Twitter and he’ll fold like a cheap suit. Meanwhile, he’ll lie and insist that the US government was censoring content, even as the Twitter Files only showed reports about accounts that might have actually violated Twitter’s polices, and the company regularly pushed back on those and refused to remove the accounts.

But for some reason he was up in arms about that, whereas here he thinks someone’s “brain fell out of their head” for simply wondering when we’ll see the “Twitter Files” for Musk’s negotiations with the Turkish government.

Once again, don’t let anyone get away with suggesting that Musk supports free speech. He clearly does not. He supports accounts that he likes being able to use a website he owns. That’s it.

Filed Under: censorship, elections, elon musk, free speech, jimmy wales, principles, recep tayyip erdogan, turkey
Companies: twitter

Court Grants Restraining Order Against Journalist For Performing Acts Of Journalism On A Politician

from the what-1st-Amendment-amirite dept

Some politicians get elected and think they’re heading up the musical equivalent of vaporware. Just a heads up: you may have more power than you’re used to but it’s constrained by the Constitution: both the one ratified by the nascent US federal government and the one adopted by individual states, which are required to use the federal version for a baseline, rather than a high bar they should never feel compelled to clear.

Constitutions in the US apply to everyone, including the checks and balances that are supposed to ensure politicians don’t wield powers they shouldn’t be wielding. So much for that. An Arizona court has decided to abdicate this responsibility to allow a local politician to shut down a particularly tenacious journalist.

It would seem obvious you can’t ask a court for a restraining order that would prevent a journalist from doing their job. Welcome to Arizona, where rights are whatever this particular court says they are, despite plenty of precedent saying otherwise. Here’s Ray Stern, who has composed a righteously indignant response to a local court ruling, with more details on this latest failure to check and/or balance:

Camryn Sanchez, who covers the state Senate for the Arizona Capitol Times, was the target of an injunction against harassment filed by state Sen. Wendy Rogers, R-Flagstaff, and approved by a Flagstaff judge April 19.

Rogers, who was reelected to a second two-year term last year, didn’t allege that Sanchez threatened her in the petition for the injunction, only that Sanchez had once persisted in asking her questions and recently rang the doorbell at two of her homes.

First, this is just journalism. A journalist will locate any residence associated with the person they want to speak to and attempt to speak to them.

Second, this politician — while only a state senator — possesses at least one more residence than a majority of their constituents. Not exactly representative of the people they represent. That’s an issue in and of itself, but one that can’t be addressed by US/state constitutions.

What can be addressed is this problematic ruling, which basically allows Senator Rogers to avoid press scrutiny as long as this bullshit remains in place. The order may only target journalist Camryn Sanchez, but it can be read to discourage other journalists from approaching the state senator at their multiple residences, or pretty much anywhere else this senator may choose to go. Those places include the public office Senator Rogers holds, supposedly in service of Arizona residents.

The lawmaker also asked that Sanchez be banned from the state Senate, but Senate President Warren Petersen, R-Gilbert, said Sanchez can continue to work as a reporter in the Senate as long as she doesn’t approach Rogers at her desk.

Not only is the journalist prevented from visiting Senator Rogers’ home(s). The journalist is forbidden from approaching the senator while she’s on the clock.

The basis of Senator Rogers’ complaint is extremely bizarre — a term she leveraged successfully against a journalist who thought she might get some answers about some apparent reimbursement fraud by approaching the reluctant senator directly. Rogers allegedly collected $19,000 in mileage and subsistence reimbursements in recent months, a total that far exceeded compensation requests from other state reps who also lived in the Phoenix area.

In her request for an injunction, Senator Rogers expressed her fear of the journalist, claiming she didn’t know what the reporter who showed up at her door(s) was “capable of” and alleged she felt fearful for her own safety. Perhaps the court should have expressed its concerns about what Senator Rogers (or her voter base) might be “capable of.”

Rogers was censured last year in part for stating on social media that her political enemies should be hanged.

Calls for lynching vs. a reporter just trying to do their job. WHO WOULD WIN. The court, for now, says the more powerful person gets to have more power. And that power will discourage journalists from seeking the truth and providing this information to their readers: the constituents this senator is supposed to be serving.

This is obvious bullshit. The court granted a restraining order, deferring to a very subjective set of perceptions — one that obviously and immediately does damage to First Amendment protections. It’s a garbage ruling. How soon it will be kicked to the curb by a competent judge remains to be seen, but it is undeniably unconstitutional. This is the Constitution being curb-stomped, and all because one politician decided she shouldn’t be subjected to further scrutiny from the press.

Filed Under: 1st amendment, arizona, camryn sanchez, flagstaff, free speech, injunction, journalism, wendy rogers

The Mouse Strikes Back: Disney Sues DeSantis For 1st Amendment Violations

from the the-mouse-is-mad dept

Almost exactly a year ago, we pointed out that Ron DeSantis deliberately trying to punish Disney for making some mild criticism of an (obviously unconstitutional) bill that he was endorsing was, itself, a 1st Amendment problem. And that was true even if the underlying idea to get rid of Disney’s control over the land in Orlando where Disney World existed might make some sense. The fact that it was done in retaliation for speech was a problem.

I actually wondered if Disney would sue earlier, but it waited until after the “switch over” to the new DeSantis-friendly board had occurred (and after Disney’s lawyers completely out-maneuvered him in public by having the old board transfer over most of its power to Disney before the new board was seated).

But, now that that’s happened, Disney’s lawyers have pounced and have sued DeSantis over the whole scheme. I am no fan of Disney lawyers, and can’t recall ever having sided with them on anything, but here, they’re right.

I won’t get into the contracts clause, takings clause, or due process clause claims in the lawsuit, but do want to talk about the 1st Amendment ones, because that’s what was most interesting to me and what we had called out earlier. Disney’s lawyers are pretty clear on how this played out:

There is no room for disagreement about what happened here: Disney expressed its opinion on state legislation and was then punished by the State for doing so.

Governor DeSantis announced that Disney’s statement had “crossed the line”—a line evidently separating permissible speech from intolerable speech—and launched a barrage of threats against the Company in immediate response. Since then, the Governor, the State Legislature, and the Governor’s handpicked local government regulators have moved beyond threats to official action, employing the machinery of the State in a coordinated campaign to damage Disney’s ability to do business in Florida. State leaders have not been subtle about their reasons for government intervention. They have proudly declared that Disney deserves this fate because of what Disney said. This is as clear a case of retaliation as this Court is ever likely to see.

At the Governor’s behest, the State Legislature first voted to dissolve the long-standing RCID, then ultimately voted to give near-complete control of RCID to the Governor himself. As the Florida representative who introduced the Reedy Creek dissolution bill declared to the Florida House State Affairs Committee: “You kick the hornet’s nest, things come up. And I will say this: You got me on one thing, this bill does target one company. It targets The Walt Disney Company.”

There are two specific claims regarding how Florida’s actions violated the 1st Amendment. There’s one for the laws the legislature passed, and DeSantis signed, to set up a board of DeSantis’ political friends to control what had been the “Reedy Creek Investment District” (RCID), replacing it with the brand new “Central FLorida Tourism Oversight District (CFTOD).

As discussed, Disney’s public statements on HB 1557 are fully protected by the First Amendment, which applies with particular force to political speech. See McIntyre, 514 U.S. at 346.

[….]

Senate Bill 4C and House Bill 9B were motivated by retaliatory intent. Governor DeSantis would not have promoted or signed, and the Legislature would not have enacted either bill, but for their desire to punish Disney for its speech on an important public issue. See Warren, 2022 WL 6250952, at *2 (crediting “sources of information about the Governor’s motivation” for suspending a prosecutor, including a tweet from the Governor’s press secretary and comments during the Governor’s announcement of the suspension).

Governor DeSantis called on the Legislature to extend its special session for the express purpose of enacting Senate Bill 4C the very day after Disney made a statement about House Bill 1557. He repeatedly and publicly stated that he was “fight[ing] back” for Disney’s criticism of House Bill 1557, including at the bill-signing ceremony. Key legislators publicly acknowledged that Senate Bill 4C targeted Disney.

To me, this is a pretty strong argument. DeSantis and many legislators were pretty open about why they were doing this and that it was retaliation for Disney’s speech. It’s hard to see how that’s not an attack on free expression.

I mean, just months earlier, DeSantis’ office was literally working with Disney’s lawyers to insert a “theme park exemption” from his social media moderation bill (which has been declared by both a district court and the 11th Circuit appeals court to be an unconstitutional 1st Amendment violation). It’s kinda frustrating that Disney focused on working with the Governor to get their own exemption rather than fighting such an incursion against free speech at the time, but at the very least it shows that DeSantis and Disney were close… right up until they issued some minor criticism of another unconstitutional bill (he does a ton of unconstitutional 1st Amendment-violating nonsense, doesn’t he? Especially for a guy who claims to be about protecting the 1st Amendment.)

The other 1st Amendment claim is regarding the new CFTOD’s interference with Disney’s contracts in trying to punish the company.

CFTOD’s retaliatory interference with the Contracts, via the Legislative Declaration and its predicates, has chilled and continues to chill Disney’s protected speech. Bennett v. Hendrix, 423 F.3d 1247, 1254 (11th Cir. 2005) (discussing action that “would likely deter a person of ordinary firmness from the exercise of First Amendment rights.”). This unconstitutional chilling effect is particularly offensive here due to the clear retaliatory and punitive intent that has motivated CFTOD’s actions, at the Governor’s directive. See Bailey v. Wheeler, 843 F.3d 473, 486 (11th Cir. 2016) (“Our First Amendment demands that a law-enforcement officer may not use his powerful post to chill or punish speech he does not like.”).

[….]

CFTOD’s actions were motivated by retaliatory intent. On April 17, Governor DeSantis warned that the CFTOD board would be meeting a few days later to “make sure Disney is held accountable.” Later that day, Governor DeSantis announced, “I look forward to the additional actions that the state control board will implement in the upcoming days.” Governor DeSantis has let no doubt be harbored as to the impetus for his punishment. He wrote in an article to promote his book, “When corporations try to use their economic power to advance a woke agenda, they become political, and not merely economic, actors. … Leaders must stand up and fight back when big corporations make the mistake, as Disney did, of using their economic might to advance apolitical agenda.”

There is no rational basis to invalidate the Contracts, and the purported justifications for doing so are pretextual.

I’m not as sure if that claim is as strong as the other one, but it’s something worth watching all the same. I imagine this case is going to take quite a while to resolve itself with whatever appeals happen no matter who wins.

But, still, this is yet more Florida taxpayer money that DeSantis is throwing away in yet another of his unconstitutional efforts to suppress speech while pretending to be champion of speech and fiscal responsibility.

Filed Under: 1st amendment, breach of contract, cftod, florida, rcid, reedy creek, retaliation, ron desantis, speech
Companies: disney

N.H. Bakery’s Mural Causes Town Beuracrats To Go Nuts Over Donuts

from the mmmm-donuts dept

You might be a little surprised how many Techdirt posts have been done that involve donuts. I know, right? What a sentence! Still, we’ve got square donut trademarks, we’ve got donuts made to look like college sports teams, and we even have donut crumbs that some Joe Friday out there thought for sure was meth.

So here we are again, back on the topic of donuts… sort of. In New Hampshire, a small bakery recently welcomed some high school art students to paint an awesome mural on the front façade of the bakery. The town, Conway, is a mountain town, and so the students painted the mural to be the sun partially shining out over a series of pastries designed to look like the nearby mountain range. Here it is below in its awesome glory.

Pretty cool, right? Well, not according to Conway’s zoning board, which decided that the mural wasn’t art at all, but an advertisement for the bakery instead. And therefore it violated zoning laws and had to go.

Then the town zoning board got involved, deciding that the pastry painting was not so much art as advertising, and so could not remain as is because of its size. Faced with modifying or removing the mural, or possibly dealing with fines and criminal charges, Young sued, saying the town is violating his freedom of speech rights.

The painting could stay right where it is if it showed actual mountains, instead of pastries suggesting mountains, or if the building wasn’t a bakery.

“They said it would be art elsewhere,” Young told The Associated Press in an interview. “It’s just not art here.”

And it’s that last bit that just might be the board’s undoing in all of this. After all, we have a very specific federal law that prohibits a government entity like a zoning board from refusing to allow what it admits is artistic content due to its own desires and we call it the First Amendment. This mural, whatever else you might think of it, is clearly speech. The zoning board apparently admits that it’s also art. The board reportedly even indicates its main quibble is with the artistic choices within the art itself.

And the government simply isn’t allowed to do that.

Following a longstanding democratic tradition of New England town meetings, residents deliberated how to define a sign before ultimately voting down changes last week. The local newspaper said the proposed wording wasn’t clear. Ultimately, a judge may have to resolve what remains an open debate in town.

Art teacher Olivia Benish, who worked with three students on the project, apologized to the board in September for not doing “due diligence” to make sure the mural would comply. She didn’t respond to requests for an interview. But she told the board members that there has to be a way to give students the opportunity to create positive public works of art “without upsetting the law and the powers that be,” according to the town minutes.

The bakery’s owner, Sean Young, sued the town in January. In his suit, for which he is seeking damages of precisely $1, he argues that his First Amendment rights are being violated and therefore asks that the mural be allowed to remain in place. Somehow amazingly, due to all of this, the town subsequently found several other murals for other businesses that violate the code due to their size and is hauling those businesses before the zoning board as well.

Meanwhile, Young is attempting to turn all of this nonsense into a positive, both for his business as well as for the high school in question.

Meanwhile, he’s selling T-shirts as a high school art department fundraiser, saying “This is Art” with the artwork on the front, and “This is a Sign” of a roadside “Leavitt’s Country Bakery” sign on the back.

“As Conway officials have confirmed, the town does not consider a painting to be a “sign” if it does not convey what town officials perceive to be a commercial message,” the lawsuit says. “But the town’s perception is that any mural depicting anything related to a business is a ‘sign.’ This is governmental discrimination based on the content of the speech” and the speaker’s identity, it said.

Even the local newspaper voiced its opinion, advocating that the town refrain from issuing any fines and instead rewrite the statute so that is both clear and incorporates artistic speech far better than it does currently.

But in the end, there is little differentiation between commercial art and art generally. The First Amendment still applies, even to commercial art. And if a town’s zoning board wants to cosplay so badly as the world’s worst HOA such that it prevents some high school art students from creating something awesome, then the problem in that equation is clearly not the mural.

Filed Under: 1st amendment, advertising, conway, donuts, murals, new hampshire, sean young, zoning

Ninth Circuit Says A Horn Honk Isn’t Protected Political Expression Even When That’s The Honk’s Entire Point

from the but-what-if-a-motorist-is-simply-horny dept

Nearly five years ago, California resident Susan Porter sued local law enforcement for deciding her honk in support of anti-Rep. Darrell Issa protesters was worth citing her for. When she expressed her support for the protesters in a way people have always considered to be an appropriate display of support, she was pulled over by Deputy Klein of the San Diego County Sheriff’s Department.

The deputy took exception to something and had on hand something that could be abused to turn his displeasure into someone else’s enormous hassle. The California vehicle code states that a horn should not be used for any other reason that giving an “audible warning” to pedestrians and other drivers and cannot be used otherwise, “except as a theft alarm system.”

Selective enforcement made it possible for the deputy to cite Porter for daring to express her support for a local demonstration. In this context, the use of her horn was clearly political expression, even if it managed to annoy a law enforcement officer enough that he felt compelled to get legal about it.

This is why people don’t pay me for legal advice:

Is a law really necessary to keep horns from blaring constantly? Or has it long been accepted horns do double-duty as expressive speech, delivering pithy messages like “You suck at driving,” “You suck in general,” “Your ride is here,” and “I heartily approve/disapprove of this issue being debated freely in the marketplace of ideas, which is apparently located at Rep. Issa’s office at the moment.”

Whatever the basis for the law, it was pretty clearly used here to express a law enforcement officer’s distaste for the message conveyed by Porter, even if the message the deputy received was “I support the people you’re currently citing for other legal violations,” rather than the one Porter intended to send.

It looked pretty open-and-shut back in 2018. Porter’s horn use was clearly directed at the protesters and the ensuing police action was clearly an attempt to discourage her from expressing her support from anything from anti-Issa protests to other drivers who may be similarly sexually aroused.

Unfortunately, the first level of the federal court system saw it differently. More unfortunately, the next level of the federal court system has agreed with the lower level, as is noted here in this article by Greg Moran of the San Diego Union-Tribune:

Honking your car horn for any reason other than warning of imminent danger is still illegal in California, a federal appeals court has ruled.

In a 2-1 decision filed this month, the 9th U.S. Circuit Court of Appeals said the state law does not violate the free-speech rights of residents. The ruling turned down an appeal from an Oceanside woman who was ticketed for the infraction by a San Diego County sheriff’s deputy as she left a 2017 protest at the offices of Rep. Darrell Issa in Vista.

While I’m glad to see the Union-Tribune is on top of issues of importance to San Diego residents, I’m far less impressed that it was unwilling to use its resources to download and post the decision [PDF] issued by the Appeals Court, despite having the same (free and open) access to Ninth Circuit decisions anyone with an internet connection has. For shame, etc.

Moving beyond this journalistic faux pas… here’s the bad news about the court’s bad decision: it says the law can be used to punish expressive speech, so long as that speech is expressed by a person activating their vehicle’s horn.

Addressing the merits, the panel determined that at least in some circumstances, a honk can carry a message that is intended to be communicative and that, in context, would reasonably be understood by the listener to be communicative. The panel next held that because section 27001 applies evenhandedly to all who wish to use a horn when a safety hazard is not present, it draws a line based on the surrounding factual situation, not based on the content of expression. The panel therefore evaluated Section 27001 as a content-neutral law and applied intermediate scrutiny. The panel concluded that Section 27001 was narrowly tailored to further California’s substantial interest in traffic safety, and therefore that it passed intermediate scrutiny.

That’s the takeaway from the majority: because the law could conceivably be enforced in a content-neutral manner, the law is content-neutral even when it clearly isn’t. And I would be very interested to see just how often this obscure law has been enforced by this deputy and his employer and under what circumstances. My guess is that this was deployed under the “well, there’s a first time for everything” exception to the First Amendment.

“Narrowly tailored” is fine, but not when it’s still broad enough to be abused to hassle people who annoy law enforcement officers. The dissent [which takes up nearly half of the 60-page decision] doesn’t let the tailored look of law distract it from its use in this particular situation, which appears to be nothing more than plain, old fashioned retaliation against protected speech.

Car horns have always been expressive. Some expressions are more protected than others.

A greeting honk, for example, emits a loud noise that causes the listener to look up; the honk itself is not a greeting message, but it causes the listener to look up, notice, and identify the honker as a friend. Similarly, a honk to summon a child does not itself convey a message; it grabs the child’s attention, so she notices that her parent is waiting for her.

Honking at a political protest, on the other hand, is a use of a vehicle horn that definitely does constitute message conveying expressive conduct and so merits First Amendment protection. When Susan Porter honked while passing a protest against U.S. Representative Darrell Issa, she was not just making noise to attract attention. She was conveying a distinct message—agreement with the protesters’ objections to Darrell Issa’s stance on gun control. And that message was understood, as the protesters cheered when she beeped. The protesters did not have to be startled into looking up to understand what Porter was honking about; in the context, they understood the message immediately.

The officers obviously knew this too, but they appear to have been motivated by their opposition to Porter’s opposition to Rep. Issa’s gun control stance.

Clearly, in this case, the honk was political, and the majority was wrong to declare otherwise.

[T]here is no evidence in the record (or elsewhere, as far as I can determine) that such political expressive horn use jeopardizes traffic safety or frustrates noise control.

And the law enforcement officer testifying could provide no solid evidence to the contrary, despite his two decades of experience:

Beck declared that his opinions were based on his “24 years of experience working for the California Highway Patrol.” Based on that experience alone, he opined that the improper use of a vehicle horn can create danger by startling or distracting others. But when asked during his deposition for the basis of this opinion, Beck couldn’t articulate a reasoned explanation for the connection between his experience and that opinion. He did not provide a single example of an accident caused by any type of horn honking, let alone honking in support of a political protest.

And the law’s so narrowly tailored as to be completely useless, unless, of course, an officer wants to use it.

Moreover, and more importantly, Beck reported that, in his twenty-four-year career, he had stopped people for a Section 27001 violation only “four or five times” and the last time he wrote a citation was “several years ago . . . probably around 2013, 2014.” Thus, his opinion as to the salutary effect of actually enforcing Section 27001’s ban on non-safety-related horn honking has no grounding in his own experience, as he has exceedingly rarely enforced the statute.

Maybe the court is legally bound to accept these “narrowly crafted” arguments. But it really shouldn’t be, not when law enforcement officers admit the law is so narrowly crafted they rarely feel compelled to enforce it. There may be good government reasons for deterring wanton honking, but wanton honking doesn’t appear to be a problem large enough a statute needs to be enacted to address it.

That leaves us with what we have here: clearly selective enforcement of the law solely to silence someone the government (in the form of officers from two different agencies) wanted to silence, however temporarily.

The Appeals Court may have gotten this right in terms of what the law says and what the officers swore they were enforcing, but it had to arrive at that conclusion by ignoring the specifics of this case, along with the officers’ own testimony, which shows the law is only enforced when it’s useful to achieve ends unrelated to the stated purpose of the traffic code.

This case will never be entertained by the Supreme Court. It’s too esoteric and too opposed to its aims under its current construction. It will head back down to the lower court for the inevitable dismissal. And cops in the Ninth Circuit will remain free to abuse esoteric laws to punish people for speech they don’t agree with.

Filed Under: 1st amendment, 9th circuit, free speech, honking, horn honking, protests, san diego sheriff's department, susan porter